There are things the law cannot do.
And if that seems a self-evident observation, well, you may want to think again in light of last week's headlines out of New York City: It seems the mayor wants to ban the Big Gulp.
Specifically, Michael Bloomberg has announced his intention to pass a law restricting restaurants, movie theaters and sports arenas from selling sugary sodas in sizes larger than 16 fluid ounces. The ban, which would not affect supermarket sales, diet sodas or alcoholic beverages, represents New York's attempt to get a handle on the growing American problem of, well, growing Americans.
As the mayor told the New York Times, "Obesity is a nationwide problem, and all over the United States, public health officials are wringing their hands saying, 'Oh, this is terrible.' New York City is not about wringing your hands; it's about doing something."
He rejected the notion that the New York ban would limit consumer choice, noting that anyone who fears she will die of thirst without 32 ounces of Fanta can simply buy two sodas. The mayor was also dismissive of the argument that the ban encroaches upon people's rights. As he put it on the Today show, "That is not exactly taking away your freedoms. It is not something the Founding Fathers fought for."
To stand at any busy intersection and watch America go waddling by, drinking a latte and munching a doughnut en route to McDonald's, is to understand the urgency of the problem that motivates the mayor. To read the statistics on diabetes, heart attacks, high blood pressure and other obesity-related illnesses is to have that understanding forcefully driven home. And yes, sugary sodas sold in containers that could double as mop buckets are certainly a contributor to that state of affairs. One cannot doubt the mayor's good intentions.
His good sense, however, is another matter.
He proposes to solve the problem with a law only Big Brother could love. It represents nothing less than the usurpation of personal prerogatives, the enforced substitution of government standards for individual ones, the triumph of the nanny state.
This is not, as Bloomberg has suggested, analogous to a smoking ban. Smoker's exhaust is an annoyance and a health hazard to nonsmokers. The state has a compelling interest in clearing it from public spaces.
Nor is this, as others have suggested, analogous to San Francisco's ban on Happy Meals. Children are vulnerable and not yet mature. The state has a compelling interest in protecting them from exploitation.
But what Bloomberg proposes has little to do with either of those things. He wishes to ban adults from behaviors that do not imperil anyone else's health.
His attempt to use the law to that end suggests a fundamental misunderstanding of what the law can do. More, it reflects the belief that human progress can be legislated, that human beings can be perfected if only we write laws enough.
But laws do not perfect. They restrict. And restriction is something of which free people should always be skeptical. What's next? A restriction on the number of doughnuts you can buy? A ration of candy and pizza?
No. You want to get adults to modify their behavior? Educate them. Persuade them. That worked with smoking, which fell from ubiquity to historic lows.
But Bloomberg prefers the heavy hammer of law. The Founders, he says, did not fight for 32-ounce sodas. But the Ninth and Tenth amendments suggest the Founders did intend to protect people's right to make their own decisions, to live their lives free of unwarranted government interference, to be left the heck alone. The Founders understood something that sometimes escapes would-be reformers.
Namely, that there are things the law cannot do. And shouldn't even try.
© 2012 Miami Herald